Bosh decision applies to arrests and seizures, says OK Appeals Court

On May 9, 2014, the Oklahoma Court of Civil Appeals held that application of the Supreme Court’s decision in Bosh v. Cherokee County Governmental Building Authority, 305 P.3d 994 (Okla. 2013) requires an arrest or seizure.  See Jackson v. Oklahoma City School Public School, 2014 OK CIV APP 61.

In Jackson, the parents of a student alleged that a teacher had assaulted their child.  Although the parents claimed the teacher was acting within the scope of employment, the allegation of assault and battery constitutes an intentional act, and because assault and battery is not within the job responsibilities of the teacher, the allegation necessarily removed the conduct from the scope of employment.

The Court went on to note the context in which the Oklahoma Supreme Court decided Bosh. “In Bosh, the Oklahoma Supreme Court extended its earlier holding, that incarcerated persons may have a private cause of action for excessive force against offending officials, to those who have been arrested or seized but not yet incarcerated.”  Id. at Para. 10.

The Jackson Court then reviewed the parent’s allegations in the lawsuit filed against the school district and concluded that “Parents did not assert a constitutional claim in the Petition and Student was not arrested or seized. ‘The Okla. Const. art. 2, § 30 applies to citizens who are seized—arrestees and pre-incarcerated detainees. . . .'”  Id. (citing Bosh, 2013 OK at Para. 22-23).

The language affirms that Bosh applies to both “citizens” and “pre-incarcerated detainees,” which emphasizes viability of Bosh beyond the four walls of a county jail.  The court’s willingness to examine the claims in the lawsuit itself to determine if a constitutional claim was urged in the first instance, and whether it alleged an arrest or seizure, provides further support for the contention that Bosh claims are not limited to citizen-police encounters, but also extends to any claim where government has exercised its power and authority to restrict a citizen’s freedom of movement.

If you have questions about excessive force or Bosh claims, contact the Tulsa injury attorney’s at Bryan and Terrill, 918-935-2777.